Donovan v. Temporary Help, ED78973

• Decision Date: 11 September 2001
• Docket Number: ED78973
• Citation: 54 S.W.3d 718
• Parties: Joseph Donovan, Plaintiff/Respondent, v. Temporary Help d/b/a Tempforce, Woodbridge Corporation, and Risk Enterprise Management, Defendants/Appellants, and Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Respondent. ED78973 Missouri Court of Appeals Eastern District 0
• Court: Missouri Court of Appeals

Joseph Donovan, Plaintiff/Respondent v Temporary Help d/b/a Tempforce, Woodbridge Corporation, and Risk Enterprise Management, Defendants/Appellants, and Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Respondent

ED78973

Missouri Court of Appeals Eastern District

09/11/2001

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: Stephan A. McManus

Counsel for Respondent: Caroline M.C. Bean, C. Dennis Barbour and Mitchell D. Jacobs

Opinion Summary:

Woodbridge Corporation appeals from a workers' compensation award issued in favor of Joseph Donovan by the Labor and Industrial Relations Commission, asserting three points of error on appeal.

Division two holds: In its first and third points on appeal, Woodbridge attempts to raise issues not presented to the commission. Issues that could have been, but were not, raised previously before the commission cannot be heard on appeal. In its second point on appeal, Woodbridge's brief contains two entirely different points relied on both numbered "Point II." The supporting argument does not cite to relevant authority. The second point does not meet Rule 84.04 appellate briefing requirements. The appeal is dismissed.

Draper III, P.J., and Hoff, J., concur.

Mary R. Russell, Judge

Woodbridge Corporation ("Woodbridge") appeals from a workers' compensation award issued by the Labor and Industrial Relations Commission ("Commission") to Joseph Donovan ("Claimant"). Woodbridge asserts three points of error on appeal, two of which were not previously raised before the Commission. Woodbridge's third point is not properly briefed. We dismiss the appeal.

Claimant slipped in the Woodbridge cafeteria one night before his shift, with the resulting injury being the claim at issue in this dispute. Claimant received an award for his injuries from an administrative law judge ("ALJ"). Woodbridge asserted two claims of error against the ALJ's ruling on appeal to the Commission. Woodbridge claimed that the ALJ's decision was erroneous in awarding 45% permanent partial disability at the level of the knee and in awarding 81 5/7 weeks of temporary total disability benefits. The Commission affirmed the ALJ's findings.

In this appeal, Woodbridge attempts to raise issues not presented to the Commission. Two of Woodbridge's points on appeal, Points I and III, assert that it was not the statutory employer and that the Second Injury Fund was responsible for payments to Claimant as a result of a temporary placement agency's failure to insure. These issues were not raised before the Commission.

Issues that could have been, but were not, raised previously before the Commission cannot be litigated on appeal. Chambliss v. Lutheran Med. Ctr., 822 S.W.2d 926, 932 (Mo.App.1991). Such issues are not preserved for review on appeal, and Woodbridge therefore is barred from raising them now. Crabill v. Hannicon, 963 S.W.2d 440, 444 (Mo.App.1998); Vinson v. Curators of Univ. of Mo., 822 S.W.2d 504, 508 (Mo.App.1991). Points I and III are dismissed.

Woodbridge's remaining point on appeal is unclear because its brief contains two entirely different points relied on that are both numbered "Point II." Woodbridge's first reference to "Point II" is stated as follows:

THE COMMISSION IMPROPERLY FOUND THAT CLAIMANT SUSTAINED PERMANENT PARTIAL DISABILITY OF 45% OF THE LEFT KNEE DUE TO THE ACCIDENT OF SEPTEMBER 6, 1995 AND IMPROPERLY AWARDED 81&5/7 WEEKS OF TTD BENEFITS SINCE HE RETURNED TO FULL TIME WORK SHORTLY AFTER HIS INJURY.

This point refers to an injury date of September 6, 1995, yet Claimant's accident occurred on November 13, 1994.

The second reference to "Point II," located in the argument portion of the brief, states as follows:

THE ALJ INCORRECTLY AWARDED PERMANENT PARTIAL DISABILITY, TEMPORARY TOTAL DISABILITY, AND UNPAID MEDICAL EXPENSES AGAINST WOODBRIDGE BECAUSE CLAIMANT DID NOT PROVE "ACCIDENT" AND WOODBRIDGE WAS NOT A STATUTORY EMPLOYER.The requirements for appellate briefs are established in Rule 84.04. When an agency decision is under review, the points relied on should contain the name of the agency and identify the challenged decision, state the reasons for...